1.No comment spam.2.No profanity.3.No RIAA trolls masquerading as something else (if RIAA PR flacks present themselves for who they are, they are welcome to participate).4.No unsupported accusations.5.No defamation.6.No threats.7.No unsupported anti-lawyer or anti-judge insults (if you know of something specific that a lawyer or judge did, with which you disagree, and you want to comment fairly upon it fine, but I don't want people here denigrating the legal profession with undocumented insults. I think that is a tactic used by RIAA trolls and some other big corporations who are trying to discourage ordinary people from talking to lawyers and learning about their legal rights, or from going to court to fight for their rights, thinking the system is stacked against them. Lawyers and judges are the cornerstone of the rule of law, which is the cornerstone of our democracy, and they are the closest thing we have to an equalizer in our society).8. No legal advice, pseudo-legal advice, or misleading statements of law, or false statements of fact.9. Comments must be related to topic of the post.10. Nothing to detract from the dignity of "Recording Industry vs. The People" as a forum for the discussion of very important issues.Thanks.-R.B.

Sunday, March 30, 2008

In Bridgeport Music v. WB Music, the Sixth Circuit has pointed out that the "Fogerty factors" were never intended by the Supreme Court to be exclusive, and that the key to "Fogerty" was evenhandedness.

The Court held that even where none of those factors are present, the Court should routinely award attorneys fees to a prevailing defendant.

In Bridgeport the Court sustained an award of attorneys fees to the defendant even though specifically finding that the plaintiff's claim was "objectively reasonable".

Saturday, March 29, 2008

I participated in 3 panels. I wasn't in a position to take detailed notes, so I'll just mention some of the highlights.

Panel #1- "Making available". The heading was: "What is the effect in the U.S. of the “making available” right? Comparative approaches in Asia, interpreting the making available right, and also the intersection with secondary liability.

The title alone gives away the bias of its author. It assumes there is a "making available" right in the United States, which even the RIAA knows is not so -- as evidenced by its removal of that theory from its complaints once Judge Brewster held that its complaint fails to state a claim in Interscope v. Rodriguez.

The keynote speaker, Michael Scheslinger, from the Washington, D.C., office of Greenberg Traurig LLP, gave an extremely misleading, and I think insincere, talk in which he stated that the existence of a "making available" right is settled law in the United States. The only authorities he had for this statement were: (1) a pro se case in which the issue was never briefed (DePietro), (2) a very weakly defended case in which the issue was never briefed (the Texas case "Atlantic v. Anderson", not to be confused with the Oregon "Atlantic v. Andersen"), (3) the jury instruction in the Thomas case (which is NOT a judicial precedent), and (4) the Hotaling case which -- if you have read the case, or even if you have only read the quotations in this blog's sidebar -- you know does not stand for the proposition that merely "making available" is a distribution. He of course omitted to mention the decision of the District of Connecticut, Atlantic v. Brennan, specifically holding that there is no such thing as "making available".

Of course when I was called on, I corrected him. And not delicately. I advised the audience that what they had heard from Mr. Schlesinger was highly misleading, and that it was clear that Mr. Schlesinger derives his revenue from content owners. I went into a more accurate description of the actual caselaw and of the important pending cases, Elektra v. Barker, Warner v. Cassin, and Atlantic v. Howell. It seemed that everyone, even including Mr. Schlesinger, was very familiar with Elektra v. Barker, and awaiting Judge Karas's decision.

Panel #2-"Statutory damages". The heading was "Should new limits be placed upon statutory damages? Did the supporters of P2P software and the individual defendants miscalculate the reaction of juries? A review of case law, e. g., Capitol Records v. Thomas, (D. Minn. 2007).

Here again the heading gives away the bias of its author.

The keynote speaker, Kenneth Doroshow, Senior Vice President of Litigation and Legal Affairs of the RIAA, chose to speak almost exclusively about the Jammie Thomas case, going into detail with his spin on the facts. He also gave his opinion as to why statutory damages should not be subject to due process scrutiny as jury trial punitive damages awards are. The host and moderator, Prof. Hugh Hansen, implied that constitutionality of statutory damages is not a serious issue.

When I spoke I tried to address the primary topic, statutory damages, rather than the facts of the Thomas case. I pointed out that the U.S. Court of Appeals for the Second Circuit, the U.S. District Court for the Eastern District of New York, and the U.S. District Court for the Northern District of California, did think constitutionality of disproportionate statutory damages was indeed a serious issue; that several excellent law review articles had taken the position that it was a serious issue; and that there was not a single authority anywhere to the effect that it was not. I also pointed out that the verdict was about 23,000 times the actual damage in the Thomas case, and that the RIAA had been seeking from 2,000 times to 450,000 times the actual damage.

I then went on to point out that I would not even be able to have a conversation with anyone who thinks a $220,000 verdict -- against $8 in actual damages -- is fair, because their values are too far removed from mine. And I pointed out that the verdict had made our country a laughingstock throughout the world.

Prof. Pamela Samuelson, of the University of California Law School, in Berkeley, said that when the statutory damages were written into the statute, Congress did not contemplate the type of infringements that are being sued for today, with 99 cent song files on p2p file sharing; that statutory damages were meant to be primarily compensatory where it is too hard to prove damage, and were not intended to be "punitive" and to make examples of people; she felt that the situation has gotten out of hand and that the RIAA's arguments as to why statutory damages exist, are wrong.

Prof. Peter Black, of the Queensland University of Technology, in Brisbane, Australia, said that he would like to confirm the accuracy of my statement that the Jammie Thomas verdict has made the United States a laughingstock in other countries.

Panel #3- "Privacy in Disclosure of Identities" The topic was "What role should privacy play in learning the identities of downloaders? A look at recent case law in the U.S. and EU (e.g. Promusicae in ECJ)

Here the title was not inflammatory, nor was the speech given by the keynote speaker, Dr. Volker Kitz, of the Max Planck Institute for Intellectual Property, Munich / HOECKER attorneys, Cologne. The speech was informative, and basically the speaker and all of the panelists each told a bit of what he or she had to say about the balance between subscribers right to privacy, and the rights of copyright owners to find out the identity of infringers.

My discussion mentioned the Canadian BMG v. Does and the Netherlands Foundation v. UPC Nederland, cases, which stopped the RIAA's counterparts in those countries, not based upon an absolute refusal to disclose the information, but based upon those Courts' recognition of the paucity of the RIAA's "evidence", and contrasted them with the United States, where the RIAA -- by its tactic of using ex parte proceedings, and the unfortunate signing of those orders by many judges -- has managed to avoid judicial scrutiny of the privacy issue. I mentioned that there are numerous statutes respecting privacy of subscribers, covering the 3 basic types of ISP's: (a) colleges and universities, (b) commercial telephone companies, and (c) commercial cable companies. I also mentioned Interscope v. Does 1-7, where the judge on his own realized that the disclosure application was incorrect, Arista v. Does 1-17 where the Oregon Attorney General has brought to the Court's attention the privacy statutes that the ex parte discovery order is asking the University to violate, and Capitol v. Does 1-16 and Arista v. Does 1-22, where the judges recognized that these proceedings should not be ex parte.

###

Many readers have asked whether transcripts, videos, or audio recordings are available. I would imagine that Fordham Law School will be preparing audio and video materials, but that they will be sold at fairly high prices, and will not be available for broadcast. I would also imagine that a transcript might appear in one of the Law School's journals. In any event, I will pass along your inquiries and get answers to them.

Friday, March 28, 2008

In Lava v. Amurao, Rolando Amurao has fought back, filing papers (a) in further support of his motion to exclude the MediaSentry evidence for having been procured illegally and to compel the deposition of Matthew Oppenheim, and (b) in opposition to the RIAA's motions for voluntary dismissal, for summary judgment on the copyright misuse counterclaim, and for discovery sanctions.

Excuse me folks, this is one of my off-topic posts, but I just had to get this off my chest. -R.B.

We have read, on Conde Naste Portfolio.com, that the Big 4 -- Warner Bros. Records, SONY BMG, EMI, and Vivendi/Universal -- are finally trying to get on board with selling music online on a subscription model, and that the person heading up this effort at Warner Brothers now says "I don't think we should be suing students and I don't think we should be suing people in their homes".

Well it's very nice to hear him say that, now, while his employer continues to bring new lawsuits, and to wreck the lives of innocent people, on a daily basis.

But I hope that when these idiots finally do open their subscription services, none of my readers will patronize them.

The lawsuit campaign is a campaign launched and managed by idiots, who have accomplished nothing except to hurt the lives of others while destroying their own companies.

We, the public, should remember what they have done, and not do business with them when they finally cave and beg the public to come back to them.

If you consider any subscription service, please be sure it's not one affiliated with, or even peddling the music of, any of those 4 companies or their labels (if you want to identify the labels to stay away from, that's real easy... go to the Index of Litigation Documents table of cases and look at the names of the record company plaintiffs. Here's a list: Arista, Atlantic, BMG, Capitol, Elektra, Fonovisa, Interscope, LaFace, Lava, Loud, Maverick, Motown, Priority, SONY, UMG, Virgin, and Warner. As a matter of principle, we should never buy music from any of those companies.)

Please stick to independent music. Here's my partial list of places to get independent music online.

Wednesday, March 26, 2008

On Friday, March 28, 2008, at the 16th Annual "Intellectual Property Law & Policy" conference, a 2-day conference hosted by Fordham University School of Law in New York City, Kenneth Doroshow, the RIAA's Senior Vice President of Litigation and Legal Affairs, will speak on the subject of copyright statutory damages. Ray Beckerman, the author of this blog, will be a member of the panel for that discussion.

Other members of that panel will be Prof. Peter Black, Queensland University of Technology, Brisbane, Prof. Pamela Samuelson, University of California, Berkeley, and Ted Shapiro, Deputy Managing Director, VP & General Counsel – Europe, MPA, European Office, Brussels.

In addition, Beckerman will be participating in panels discussing the "making available" concept and the role privacy rights should play in proceedings to obtain disclosure of subscriber identities from ISP's for p2p cases.

CLE credit is available for the conference.

A full description of the March 28th panels in which Beckerman will be participating is as follows:

2. Should new limits be placed upon statutory damages? Did the supporters of P2P software and the individual defendants miscalculate the reaction of juries? A review of case law, e. g., Capitol Records v. Thomas, (D. Minn. 2007).

3. What role should privacy play in learning the identities of downloaders? A look at recent case law in the U.S. and EU (e.g. Promusicae in ECJ)

Speaker:Dr. Volker Kitz, Max Planck Institute for Intellectual Property, Munich / HOECKER attorneys, Cologne Private Peers – What Role Should Privacy Law Play in Learning the Identities of P2P Users? The European Case

The “Data Retention Directive” obliges access providers throughout Europe to store dynamic IP addresses. The ECJ, however, decided that privacy law might prevent right holders from obtaining this data. Where is the right balance between IP enforcement and privacy?

Tuesday, March 25, 2008

In Atlantic v. Andersen, where the Magistrate Judge and the District Court Judge have ruled that Tanya Andersen is entitled to her attorneys fees, after 3 years of defending herself from the RIAA, the parties have now filed their papers staking out their positions on how much the attorneys fees should be.

The Massachusetts State police have banned the company, it’s been accused of operating without a licence in Oregon, Florida, Texas and New York, and similar charges have been levelled at it in Michigan, we said in Is RIAA’s MediaSentry illegal in YOUR state?

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove